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In Re: Siny Corp.
In Re: Siny Corp.
2018-1077
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added that in cases where the goods are technical and spe-
cialized and the applicant and examining attorney disagree
on the point-of-sale nature of a submitted webpage speci-
men, “the applicant would be well advised to provide the
examining attorney with additional evidence and infor-
mation regarding the manner in which purchases are actu-
ally made through the webpage.” J.A. 9 (noting further
that “[a]ttorney argument is not a substitute for reliable
documentation of how sales actually are made . . . and ver-
ified statements from knowledgeable personnel as to what
happens and how”). The Board ultimately affirmed the re-
fusal because it found that the Webpage Specimen was not
a display associated with the goods within the meaning of
the Lanham Act. J.A. 10. The dissenter found that the
Webpage Specimen was a valid “point of sale” display.
J.A. 10–12.
Siny appeals. We have jurisdiction under 28 U.S.C.
§ 1295(a)(4)(B).
II
We review the Board’s legal conclusions de novo and its
factual findings for substantial evidence. E.g., Royal
Crown Co. v. The Coca-Cola Co., 892 F.3d 1358, 1364–65
(Fed. Cir. 2018). Substantial evidence is “such relevant ev-
idence as a reasonable mind might accept as adequate to
support a conclusion.” Id. at 1365 (quoting Consol. Edison
Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)).
The Lanham Act provides for registration of a mark
based on use of the mark in commerce. 15 U.S.C. § 1051(a).
A mark is deemed in use in commerce on goods when,
among other things, “it is placed in any manner on the
goods or their containers or the displays associated there-
with or on the tags or labels affixed thereto.” Id. § 1127
(emphasis added). The U.S. Patent and Trademark Office
(PTO) requires an applicant to submit a specimen of use
“showing the mark as used on or in connection with the
goods.” In re Sones, 590 F.3d 1282, 1284 (Fed. Cir. 2009)
IN RE: SINY CORP. 7